Disability rights in the Inter-American System of Human Rights
| Published date | 01 March 2018 |
| Author | Diana Guarnizo-Peralta1 |
| Date | 01 March 2018 |
| DOI | 10.1177/0924051917753254 |
| Subject Matter | Articles |
Article
Disability rights in the
Inter-American System of
Human Rights: An expansive
and evolving protection
Diana Guarnizo-Peralta
1
Dejusticia, Bogota
´, Colombia
Abstract
In recent years the Inter-American Human Rights System has moved in the direction of increasingly
protecting the rights of persons with disabilities. Although the Inter-American singular instrument
dealing with disability rights (CIADDIS) does not provide a strong tool for the analysis of individual
claimsin cases of violationsof these rights, both theInter-American Commissionon Human Rightsand
the Inter-American Court of Human Rights have relied on an expansive interpretation of the Inter-
American treaties, particularly the American Convention on Human Rights (ACHR), in order to
protectthem. The purpose of thisarticle is to trace the evolutionof Inter-Americanjurisprudence and
practice withregard to the protection of the rightsof persons with disabilities.In its first decisions on
persons with disabilities, the Inter-American System took a general approach by simply recognising
that personswith disabilities are entitledto the same rights as all persons;in its more recent decisions
the Inter-American System has taken a proactive approach by interpreting those rights from a par-
ticular disability rights perspective. This article willargue that in doing so, the Inter-American System
has, in some aspects, progressively caught up with international standards of protection regarding
disabilityrights, whilein others, it has developeda particular standardof interpretationthat is in conflict
with the CRPD’s standards. Inter-American jurisprudence is thusslowly becoming an internationally
relevant actor for the interpretation of disability rights, one that shouldbe taken into account.
Keywords
Disability rights, Inter-American System of Human Rights, ACHR, CRPD, CIADDIS, persons with
disabilities.
1. Diana Guarnizo-Peralta (PhD and LLM in International Human Rights Law at University of Essex, LLB at National
University of Colombia, Researcher at Dejusticia, Bogota´, Colombia). I would like to thank Sabine Michalowski and
Claret Vargas for their comments on previous versions of this work, and to Natalia Rodriguez-Malago´n and Tara Van-
Ho for their editorial revisions. E-mail dguarnizo@dejusticia.org.
Corresponding author:
Diana Guarnizo-Peralta, Dejusticia, Bogota
´, Colombia.
E-mail: dguarnizo@dejusticia.org
Netherlands Quarterly of Human Rights
2018, Vol. 36(1) 43–63
ªThe Author(s) 2018
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DOI: 10.1177/0924051917753254
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1. Introduction
Developments in International Law in the past 10 years have shown that there is an increasing
concern with regard to the rights of persons with disabilities. At the United Nations (UN) level, the
Convention on the Rights of Persons with Disabilities (hereinafter CRPD), which was adopted in
2006 and entered into force in 2008,
2
provides an international legal framework for the protection
of persons with disabilities. At the Inter-American level, the Convention on the Elimination of all
forms of Discrimination against Persons with Disabilities (hereinafter CIADDIS), adopted in 1999
and entered into force in 2001,
3
provides a regional framework for disability rights. Within the
Inter-American System both the Inter-American Commission on Human Rights (hereinafter ‘the
Commission’ or IACHR) and the Inter-American Court of Human Rights (hereinafter ‘the Court’
or IACtHR), have progressively protected the rights of persons with disabilities in their case law.
Despite the existence of specialised treaties on the rights of persons with disabilities within the
Inter-American System, the Commission and the Court have both relied mainly on the American
Convention on Human Rights (hereinafter the ‘American Convention’ or ACHR) and, more
recently, the Protocol of San Salvador (hereinafter the ‘Protocol of San Salvador’) in order to
protect the civil, political, economic, social and cultural rights of persons with disabilities.
This article will describe the approaches used by both the Commission and the Court in the
protection of disability rights. It will argue that, despite the lack of a particular mechanism to
protect the rights of persons with disabilities, and the low interest of the system to engage in a deep
analysis about disability rights in its first cases, the Inter-American system is slowly including a
disability rights perspective in its case law. In doing so, the Inter-American system is developing
its own voice and becoming a relevant actor in the definition of international standards on dis-
ability rights, a voice that should be taken seriously into account.
In the first Section, the article will present the instruments on disability rights that frame the
protection of these rights within the Inter-American System and will compare them with those
established in the United Nations system. The second Section will present the case law on the
rights of persons with disabilities within the Inter-American Commission on Human Rights,
distinguishing the analysis by rights and emphasising the role of precautionary measures. The
third Section will do the same for the case law of the Inter-American Court of Human Rights,
illustrating the introduction of disability standards in cases related to health, access to a fair trial,
and to education. The fourth Section will put forward the points that should be developed by the
jurisprudence of the Inter-American System, if it wants to keep engaging with disability rights in
the future. The fifth Section will develop some general conclusions.
2. Disparate beginnings: Differences in the understanding of disability
rights between the CRPD and CIADDIS
In 2001, the CIADDIS, the Inter-American System’s Instrument protecting the rights of persons
with disabilities, came into force, becoming the first international instrument of it s kind. The
definition of disability under the CIADDIS focuses on the impairments of a person to perform
2. Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) A/
RES/61/106 (CRPD).
3. Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities (adopted 6 August 1999,
entered into force 14 September 2001) OAS AG/RES 1608 (XXIX-O/99) (1999) (CIADDIS).
44 Netherlands Quarterly of Human Rights 36(1)
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